Brent Moresco v The Queen
[2018] VSCA 336
•11 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0218
| BRENT MORESCO | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | KAYE, HARGRAVE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 December 2018 |
| DATE OF JUDGMENT: | 11 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 336 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1527 (Judge Ryan) |
---
CRIMINAL LAW – Appeal – Sentencing – Parity – Youthful offender – Charge of recklessly cause serious injury – Assaulting and partial blinding of victim – Guilty plea – Sentenced to Youth Justice Centre Order for period of three years – Co-offender sentenced to three years’ imprisonment with non-parole period of 21 months – Co-offender had relevant criminal history whereas applicant did not – Whether disparity as between co-accused – Application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A P Lewis | James Dowsley & Associates |
| For the Respondent | Mr C Carr | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA
HARGRAVE JA
WEINBERG JA:
The applicant, together with Bradley Elmore-Jeffries, pleaded guilty in the County Court to one charge of recklessly causing serious injury to Elliot Harvey at Brunswick on 27 May 2017. After pleas were presented in each case, the applicant was sentenced to be detained for three years in a Youth Justice Centre. His co-accused, Elmore-Jeffries, was sentenced to imprisonment for a period of three years, with a non-parole period of 21 months.[1]
[1]DPP v Moresco & Anor [2018] VCC 1527 (‘Reasons’).
The applicant seeks leave to appeal the sentence on the following ground:
Ground 1:The sentence imposed offends the principle of parity in that there is an insufficient disparity between the sentence imposed on Mr Elmore-Jeffries and the sentence imposed on the applicant.
Circumstances of offence
The applicant was born in January 1998, and at the time of the offence he was 19 years of age. Elmore-Jeffries was born in May 1996, and he was almost 21 years of age at the time of the offence. They were both then residing in Wonthaggi in eastern Victoria.
The incident, that was the subject of the charge against each of them, occurred at 1:00 am on 27 May 2017 at Rubix Warehouse Nightclub in Brunswick. Earlier on that evening, the victim, Harvey, who was then 27 years of age, attended those premises in company with his girlfriend. The applicant and Elmore-Jeffries also attended, in company with another friend, Joshua Stubbs. Before they arrived at the nightclub, each of them had been drinking alcohol.
Shortly after their arrival, a verbal dispute took place between the applicant and his colleagues on the one hand, and Harvey on the other , in the car park to the premises, in which the parties exchanged unpleasantries.
The incident, which occurred some hours later, was captured on camera by closed circuit television (CCTV). The judge viewed that footage on a number of occasions, and made findings about the incident, which he set out in his reasons for sentence.[2]
[2]Reasons [8].
Immediately before the incident, Elmore-Jeffries and Stubbs were seated on a couch, and the applicant was squatting next to it. Harvey walked past the group, and as he did so, he nudged the applicant with his foot. In response, the applicant reacted immediately. He rose to his feet and spoke to Harvey in an aggressive manner. He was quickly joined by his two companions. Thereafter, the group moved a short distance from the couch. The applicant placed his hands on Harvey and had a conversation with him. At that stage, both the applicant and his two companions adopted a threatening manner towards Harvey. Harvey put his hands up in an open manner towards the applicant and his friends, as if to placate them, and he attempted to move away from them. However, the applicant and his colleagues continued to confront Harvey. He was stopped from moving away from them by Stubbs, who placed his hands onto Harvey and pushed him back into the group. At that stage, Elmore-Jeffries had moved behind Harvey. Elmore-Jeffries grabbed him from behind, as a result of which he lost balance. As he did so, the applicant and Elmore-Jeffries both grabbed hold of him. The applicant punched Harvey three or four times before he went to the ground. At least one of those punches struck him in the face. Once Harvey had fallen to the ground, Elmore-Jeffries set upon him and punched him repeatedly.
As a consequence of the incident, Harvey suffered catastrophic injury to his right eye resulting in a ruptured globe. He underwent surgery for repair of a fixed funnel total retinal detachment. However, due to the nature of the injury, he effectively lost all vision in the eye. The report of the clinical ophthalmologist stated that there was also the prospect of ongoing corneal decompensation and phthisis bulbi, with the possibility that ongoing cosmetic and other issues may affect Mr Harvey’s eye.
At the time of the offence, Mr Harvey was employed as a contractor for Parks Victoria in bush regeneration work. At the time of sentence, he was only able to work sixteen hours per week, and his capacity to perform all the tasks required of him in the course of his employment had been substantially affected. In addition, he had been unable to participate in a number of sports and recreational activities which he had previously enjoyed. He had also been affected by anxiety and depression as a result of his disability.
The applicant and Elmore-Jeffries were each arrested following an appointment at Wonthaggi Police Station on 6 July 2017. They both participated, separately, in recorded interviews. Each of them initially denied assaulting Harvey. However, after they were shown the CCTV footage, they each admitted to punching Harvey.
Antecedents of applicant and co-offender
At the time of sentence, the applicant had no previous convictions. On the other hand, Elmore-Jeffries had one previous conviction. In September 2014, he came before the Korumburra Children’s Court on one charge of recklessly causing injury, arising out of an incident in which he had been involved in December 2013. The charge was adjourned for a period of 12 months without conviction, upon him entering into a good behaviour bond. Elmore-Jeffries complied with that undertaking, and in December 2015 the charge was dismissed.
In addition, in December 2017, seven months after the offence, Elmore-Jeffries was involved in a further incident in a hotel in Wonthaggi, in which he assaulted his victim with a beer glass. Elmore-Jeffries was charged with an offence of causing serious injury, although it is not clear whether he was charged with intentionally or recklessly causing serious injury. At the time of sentence in the present case, the charge was due to be heard in the local Magistrates Court. As the sentencing judge noted, that matter did not constitute a previous conviction in respect of Elmore-Jeffries, but it was relevant to the issue of Elmore-Jeffries’ prospects of rehabilitation.
The plea on behalf of the applicant
The applicant was born and raised in Wonthaggi. His parents separated when he was about eight years of age. The applicant and his older brother remained living with his father throughout his adolescent years, and he continued to do so until he was sentenced. During that time, he had regular contact with his mother.
The applicant was educated at Wonthaggi Primary School, and subsequently at Wonthaggi Secondary School. He completed Year 11 studying the VCAL syllabus. During that time, he actively played football and cricket, and he was also a successful motor cross rider.
After the applicant left school, he obtained part time employment at the local Safeway supermarket for eight months. In December 2015, he commenced employment with a local arborist, Mr Peter Bateman, in his business ‘Arborzone’. In mid-2017, Mr Bateman engaged the applicant as an apprentice arborist. The apprenticeship was of two years’ duration. During that period, the applicant worked four days per week, and on the fifth working day he attended TAFE studies, studying for a certificate III in Arboriculture. In a reference to the court, Mr Bateman described the applicant as a conscientious and honest worker, who had often exceeded his expectations. Mr Bateman stated that in his twenty years of business, the applicant was only the second person whom he had contracted on an apprenticeship, because the work required particular qualities of precision, thought, good judgment and clear thinking.
In addition, a number of other persons provided character references which were tendered on the plea. The applicant’s father described him as a carefree child who had caused him no problems. He stated that the applicant was only a social drinker, and that he had decreased his intake of alcohol since the offence. The applicant’s father stated also that the applicant had demonstrated remorse for his actions, and for the victim and his family.
The applicant’s aunt, Desma Moresco, also provided a character reference which was tendered on the plea. Ms Moresco had been particularly close to the applicant, and she had been a mother figure to him. She had been employed for a period of time by the Northern Territory Health Department as a drug and alcohol counsellor. Ms Moresco stated that the applicant was a caring, sensitive and honest person. She had discussed with the applicant the effects of alcohol. The applicant had listened intently to what she told him, and he fully understood the consequences of his actions. She said that he was very remorseful towards the victim and his family.
In addition, other character references were tendered on behalf of Mr Andrew Kram and Mrs Caroline Kram, who had been close friends of the applicant, Mr Peter Hill, a neighbour of the applicant, Mr Graham Bird, whose son had played football with the applicant, and Ms Marni Redmond, a close friend of the applicant’s family. The effect of those references was that the applicant was a person with a number of positive qualities, that the offending was entirely out of character for the applicant, and that he had demonstrated regret and embarrassment in relation to his offending.
The applicant was interviewed by Ms Carla Lechner, a clinical psychologist, in February 2018. Ms Lechner concluded that the applicant did not present with any symptoms of an underlying psychological or psychiatric disorder, although he evidenced symptoms of depression and anxiety consequent upon his offending and the pending court case. She considered that the applicant had insight into the connection between his alcohol use and offending, that he presented as a ‘low’ risk of any further violent behaviour, and that he had excellent prospects of rehabilitation. Ms Lechner also noted that the applicant had accepted responsibility for his actions (which he described to her as ‘absolutely disgusting’), and that he had expressed appropriate empathy for his victim.
In the course of the plea, a pre-sentence report was obtained from the Youth Justice Unit of the Department of Justice and Regulation. In the report, the applicant was assessed as having very strong prospects of rehabilitation. It was noted that he would be vulnerable in a custodial sentence, and he would be at risk of being exposed to undesirable influences in such a situation. The applicant was assessed to be suitable for a senior Youth Justice Centre Order.
On the plea, counsel accepted that the offending by the applicant was serious. He relied, in mitigation, on the applicant’s personal circumstances, which included his lack of previous criminal history, his stable employment record, the character references that were tendered on his behalf, his early guilty plea, his remorse, and the fact that he had excellent prospects of rehabilitation. Based on those matters, counsel submitted that the judge should release the applicant on a community correction order with appropriate conditions.
The plea on behalf of Elmore-Jeffries
Elmore-Jeffries was also born and raised in Wonthaggi. He was the only child of the marriage between his parents. When he was six months of age, his parents separated. His mother had suffered severe depression, and other mental health issues, for a number of years. After their separation, Elmore-Jeffries’ mother and father became involved in a protracted and bitter Family Court dispute in relation to his custody. Subsequently, his father re-partnered when he was six years of age. However, his step-mother rejected him, and she was intolerant and unkind towards him.
In the years that followed, Elmore-Jeffries was subjected to physical and emotional abuse at home. His situation became worse when his step-mother gave birth to a daughter who was born with Down’s Syndrome. As a consequence, Elmore-Jeffries experienced intense feelings of rejection and abandonment during his childhood. Eventually, when he was 14 years of age, his father’s second marriage broke down. However, he soon re-partnered, entering into a relationship with a girl who was two years older than Elmore-Jeffries, and who attended the same school. As a consequence, Elmore-Jeffries was subjected to severe bullying at school. In response, he ceased to attend school and left home, living a homeless life during the months that followed.
At about that time, Elmore-Jeffries’ mother returned to the Wonthaggi area. Some time after her return, Elmore-Jeffries became aware that she was then living in Wonthaggi. He tracked her down at the motor mechanic business that was then operated by her husband, Elmore-Jeffries’ step-father. As a result, Elmore-Jeffries commenced to live with his mother, and to work with his step-father in his business. He undertook an apprenticeship with his step-father, and in due course he completed the four years of practical training. However, at the time of sentence, he had only completed three of the requisite four years of theoretical training.
The incident, that was the subject of the charge in the present case, was given some publicity in Wonthaggi. At about that time, the business of Elmore-Jeffries’ step-father began to decline. Elmore-Jeffries’ mother blamed him for that decline, and told him, on numerous occasions, that he was responsible for it. In 2018, and during the adjourned plea in the present matter, the business was sold, and Elmore-Jeffries’ mother and step-father made preparations to return to Queensland. As a consequence, counsel for Elmore-Jeffries noted, on the plea, that he would be without any family support during the term of any sentence of imprisonment imposed on him. In the meantime, Elmore-Jeffries secured further employment as a renderer with Phillip Island Rendering. His employer provided a reference to the Court stating that Elmore-Jeffries was an enthusiastic employee, who performed his work to a good standard.
Five days after the incident that took place in the hotel in Wonthaggi in December 2017, Elmore-Jeffries attempted to take his life by an overdose of Nurofen. He was taken to hospital and was subsequently admitted to the Flynn Psychiatric Ward at the Traralgon Hospital. After he was discharged from hospital, he consulted and was treated by Mr Charles Huson, a psychologist, whose report was tendered on the plea.
In that report, Mr Huson expressed the view that Elmore-Jeffries had significantly impaired mental functioning, which had its origins in an Attention Deficit Hyperactivity Disorder (‘ADHD’), broken family and failed education. Later in the report, he stated that Elmore-Jeffries suffered from anxiety, post-traumatic stress disorder, ADHD and occasional depression since childhood. He said that, as a result of Elmore-Jeffries’ early childhood experiences, he appeared to have developed a ‘hair trigger’ to anxiety arousing circumstances when under the influence of alcohol.
Mr Huson’s report was somewhat confusing, and, in parts, contradictory. A further report, by Dr Simon Kennedy, a clinical and forensic psychologist, was obtained and tendered. Mr Kennedy noted that Elmore-Jeffries had marked family of origin issues, having been exposed to physical and emotional abuse in his teenage years. Dr Kennedy stated that Elmore-Jeffries had problems with depressive symptoms, including anxiety and anger, and that he presented with personality difficulties with borderline personality disorder features. He had sound remorse although only emerging insight.
Because of the differences between Mr Huson’s report and Dr Kennedy’s report, counsel for Elmore-Jeffries persuaded the judge to obtain a report from Forensicare. Accordingly, Dr Remy Glowinski, a consultant psychiatrist, examined Elmore-Jeffries and provided a report to the Court. Dr Glowinski concluded that Elmore-Jeffries met the criteria for several psychiatric disorders, including generalised anxiety disorder, social phobia and dysthymic disorder (persistent depressive disorder), those disorders being related to his adverse childhood circumstances and ongoing social difficulties. He considered that Elmore-Jeffries experienced considerable anger and rage concerning his childhood and past circumstances, and that he reacted to feelings of victimisation in a disproportionate fashion when intoxicated. He stated that Elmore-Jeffries was a vulnerable young man who, in light of his history of neglect and childhood abuse, was less established in adult roles and was less mature than his peers.
A number of character references were tendered on the plea on behalf of Elmore-Jeffries. His step-father, Mr Matthew Boyle, stated that Elmore-Jeffries had been employed by him for nearly six years. During that time, he had demonstrated a professional and ethical attitude to his work and clients, and he was a motivated and dedicated employee. Mr Boyle considered that Elmore-Jeffries’ troubled childhood and his experiences may have contributed to his conduct. Elmore-Jeffries had expressed to Mr Boyle his genuine regret and embarrassment over the incident.
References were also provided by two members of his extended family, his paternal grandmother, and the sister of his former step-mother. The references described the circumstances of the applicant’s upbringing. They each stated that Elmore-Jeffries had expressed regret about the incident in which he had been involved. Positive character references were also provided by the captain of Elmore-Jeffries’ cricket team, and by a member of the Dalyston Football and Netball Club.
In the plea made on behalf of Elmore-Jeffries, counsel submitted that there was a connection between the applicant’s disadvantaged and difficult background, his consequent mental ill health, and his offending. Further, it was submitted that, as a consequence of Elmore-Jeffries’ depressive disorder, a term of imprisonment would be more onerous on him.
The judge’s reasons for sentence
In his reasons for sentence, the sentencing judge noted that when Mr Harvey nudged the applicant with his foot as he walked past him in the nightclub, the applicant’s reaction was one of ‘immediate intimidation and violence’ that occurred in company with his co-accused, Elmore-Jeffries and his associate, Stubbs.[3] The judge also noted that when Mr Harvey raised his hands and attempted to walk away, he was shepherded back into the group, and set upon by the applicant and Elmore-Jeffries. In particular, the applicant threw the first punch, and he struck his victim three or four times.[4] The judge stated:
Your conduct is an example of senseless violence by drunken young men. Your actions are a serious example of the offence of recklessly causing serious injury.[5]
[3]Reasons [71].
[4]Reasons [39].
[5]Reasons [71].
The judge observed that random violence, committed by young men while affected by alcohol, is commonplace in our community, that the violence is usually brief and unpremeditated, but that it has profound and enduring consequences for the victim. Accordingly, just punishment and general deterrence are relevant considerations in sentencing in such a case.[6]
[6]Reasons [43]–[44].
The judge considered that both the applicant and Elmore-Jeffries were appropriate vehicles for general deterrence, and that Elmore-Jeffries was also an appropriate vehicle for the application of specific deterrence. He noted that the applicant was a young offender, who would be vulnerable in a prison setting, and who was suitable for a Youth Justice Centre Order. He also noted that Elmore-Jeffries had had a troubled upbringing, and that the difficulties he had experienced in his life had impacted adversely on him. As a consequence, he had a ‘hair trigger’ when he was under the influence of alcohol and presented with anxiety arousing circumstances, which was likely to result in violence.[7] The judge thus considered that his prospects of rehabilitation were ‘fair’.[8] The judge accepted that the applicant and Elmore-Jeffries had each pleaded guilty at an early stage, and that their pleas were evidence of their remorse and their readiness to facilitate the course of justice.[9]
[7]Reasons [73], [75].
[8]Reasons [75].
[9]Reasons [76].
Submissions
In support of the proposed ground of appeal, that the sentence imposed on the applicant offends the principle of parity, counsel for the applicant accepted that there were some similarities in the personal circumstances of the applicant and Elmore-Jeffries. In particular, each of them had pleaded guilty to the same charge, and they were sentenced on the basis that they had entered those pleas at an early stage. However, the applicant had no previous convictions. By contrast, Elmore-Jeffries had a previous finding of guilt for recklessly causing serious injury. In addition, he faced other assault charges arising out of the incident that occurred in December 2017, to which he intended to plead guilty. Further, the applicant had significant mitigatory circumstances, including that he had a stable upbringing, strong family support, and a good employment history, that he had reduced his alcohol intake since the offence, and that he had demonstrated insight and deep remorse for his conduct. The judge found that he had good prospects for rehabilitation.
On the other hand, it was submitted, Elmore-Jeffries did not have the family support enjoyed by the applicant, he had a ‘hair trigger’ when under the influence of alcohol, and his prospects of rehabilitation were found by the judge to be only ‘fair’. It was submitted that the judge did not conclude that any of the principles stated in R v Verdins[10] applied as mitigating factors in relation to the sentence to be imposed on Elmore-Jeffries. In contrast to Elmore-Jeffries, the judge did not consider that the applicant was an appropriate vehicle for the application of specific deterrence. In addition, the applicant was younger than Elmore-Jeffries, and the pre-sentence report was highly favourable to him.
[10](2007) 16 VR 269.
Counsel for the applicant referred to the principle that, ordinarily, the youth of an offender is relevant as a mitigating factor, because the law regards the rehabilitation of young offenders to be important in the interests of society. In the present case, it was submitted, the different antecedents and personal circumstances of the applicant and Elmore-Jeffries had the effect that the applicant’s youth should have been given substantially more weight, in mitigation of sentence, than was accorded to the youth of Elmore-Jeffries.
Taking those matters into account, counsel contended that the differential in the respective sentences imposed on the applicant and Elmore-Jeffries did not sufficiently take into account the important distinguishing factors between the two offenders. The fact that the applicant was a young offender meant, it was submitted, that his prospects for rehabilitation were a very important factor in the sentencing synthesis. Thus, it was submitted that there was such an insufficient disparity, between the sentence imposed on Elmore-Jeffries, and the sentence imposed on the applicant, as to give rise to a justifiable sense of grievance.
In response, counsel for the respondent noted that, in order to establish the proposed ground of appeal relied on, the applicant must demonstrate that there was such a manifest discrepancy between the sentences imposed on the co-offenders as to engender a justifiable sense of grievance that justice had not been done to the applicant.[11] Counsel for the respondent (correctly) emphasised that that test is stringent, and difficult to fulfil.
[11]Le v The Queen [2018] VSCA 309 [11] (Priest JA).
Counsel for the respondent noted that counsel for the applicant, had contended, in effect, that there was inadequate disparity, because the applicant and Elmore-Jeffries each received sentences depriving them of three years of their liberty. Counsel for the respondent submitted that that contention failed to take into account that a sentence served in a Youth Justice Centre is less punitive than a sentence of imprisonment. In particular, the legislation, that governs the administration of a Youth Justice Centre, requires that the best interests of each detainee be promoted by the care, custody or treatment that is provided to the detainee, by being directed to the successful rehabilitation of the detainee. Further, where a Youth Justice Centre order is imposed, eligibility for parole is immediate.[12] By contrast, the sentence imposed on Elmore-Jeffries imposed a minimum term of incarceration of 21 months before he was to become eligible for parole.
[12]Children Youth and Families Act 2005 s 458(1).
Counsel for the respondent further contended that the different personal circumstances of the two offenders did not lead to a relevant distinction between them. While the applicant had had the benefits of a stable background and family support, Elmore-Jeffries, in contrast, had suffered a deprived and abusive childhood, which operated as a mitigating circumstance in his favour in accordance with the principles stated by the High Court in Bugmy v The Queen.[13] The difference in ages between the two offenders was of little moment, as they were both young at the time of the offending. Counsel submitted that the only real distinction between the applicant and Elmore-Jeffries was that Elmore-Jeffries had a previous ‘conviction’ for a similar offence. He contended that that difference was amply reflected by the different sentence imposed on the applicant and the jail sentence imposed on Elmore-Jeffries.
[13](2013) 249 CLR 571.
Conclusion
The effect of the principle of parity in sentencing has been well established since the decisions of the High Court in Lowe v The Queen[14] and Postiglione v The Queen.[15] The principle is based on the proposition that equal justice requires that, all things being equal, like co-offenders should be treated equally, subject to the qualification that relevant differences between the culpability of the offenders, and matters personal to them, be properly accommodated in the exercise of the sentencing discretion.
[14](1984) 154 CLR 606, 610 (Gibbs CJ), 613–14 (Mason J), 623–4 (Dawson J).
[15](1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J).
Sentencing error on the basis of disparity may occur where, taking into account the differences between the roles of the offenders in the offence, their respective levels of culpability, and their personal circumstances, there nevertheless is such a marked discrepancy between the sentences passed on co-offenders as to produce a justifiable sense of grievance in the objective bystander. The imprecise nature of sentencing in each case, and the discretionary nature of sentencing, involving the balancing and synthesis of relevant considerations, is such that it may only be concluded that sentencing error has occurred where the appellate court considers that it was not open to the sentencing judge to differentiate in the sentences of the co-offenders in the way in which the judge did.[16]
[16]See, eg, Anthony v The Queen [2016] VSCA 22 [12] (Redlich and Beach JJA); Hilder v The Queen [2011] VSCA 192 [38]–[39] (Maxwell ACJ); Roujnikov v The Queen [2015] VSCA 97 [25] (Weinberg and Kyrou JJA); Ryan v The Queen [2016] VSCA 255 [42] (Weinberg, Whelan and Priest JJA).
In R v Mercieca,[17] Winneke P (with whom Charles JA agreed) described the application of the relevant principle as follows:
In the circumstances of this appeal I want to issue this injunction. There will be few cases where an appellate court can legitimately interfere with the sentence on what are loosely called ‘parity principles’. Those principles are the product of the court’s desire to achieve equal justice which, in turn, aspires to the notion that ‘like should be treated alike ― but if there are relevant differences, due allowance should be made’. However, those principles recognise that sentencing is itself an imprecise art in which judges are called upon to exercise discretions in respect of principles which are conflicting in their application and will almost inevitably produce disparity between sentences imposed, even in the case of co-offenders. Thus before an appellate court can intervene on the basis of disparity, or lack of it, the authorities recognise that that disparity, or lack of it, must be ‘marked’ or ‘manifest’ and such as to produce a legitimate and justifiable sense of grievance in the objective observer.[18]
[17][2004] VSCA 170.
[18]Ibid [17].
In the present case, it is not suggested that there was any material difference in the roles, or the levels of objective culpability, of the applicant and Elmore-Jeffries in the offending. It seems clear that the judge regarded each of them as having been equal participants in the commission of the offence. In particular, it was the applicant who instigated the confrontation with Mr Harvey by reacting aggressively to the relatively minor provocation offered to him by Harvey. He persisted in that confrontation notwithstanding that Harvey endeavoured to act in a placatory manner, and tried to back away from the applicant. Similarly, it was the applicant who initiated the violent assault on Harvey, striking the first blows to Harvey, and punching him three or four times as he fell to the ground, while he was being restrained by Elmore-Jeffries, and while his path was blocked by Stubbs.
The principal difference, between Elmore-Jeffries and the applicant, for the purposes of sentencing, was that, whereas the applicant had no criminal convictions, Elmore-Jeffries had previously come before a court, and been dealt with, on a charge involving violence. In addition, there were relevant differences in their personal circumstances.
Those matters were at the forefront of the submissions made on behalf of the applicant. Counsel for the applicant, correctly, acknowledged that the sentence of imprisonment, imposed on Elmore-Jeffries, was, of its nature, more onerous than the sentence that the applicant is required to serve in a Youth Justice Centre. However, he submitted that, by imposing the same three year ’head sentence’ on the applicant that was imposed on Elmore-Jeffries, the judge failed to adequately take into account the differences in the mitigating factors that were relevant to each of them.
It is, of course, obvious ― as was conceded by counsel for the applicant ― that the sentence of imprisonment, that was imposed on Elmore-Jeffries, was materially more onerous than the sentence, that is to be served by the applicant in a Youth Justice Centre, notwithstanding that the length of each head sentence is the same.[19]
[19]R v King; R v Ngyoune [2007] VSCA 263 [35] (Coldrey AJA).
Elmore-Jeffries will serve the term of imprisonment imposed on him in a prison established under the Corrections Act 1986. Thus, for the term of his sentence, he will be detained, with adult male prisoners, in the isolated, restrictive and austere conditions of imprisonment that were described in some detail, more than forty years ago, by Fox J in R v Dixon,[20] in terms which have been considered to be still applicable in more recent times.[21]
[20](1975) 22 ACTR 13, 19–20.
[21]DPP v Tokava [2006] VSCA 156 [22]–[23] (Maxwell P); Boulton v The Queen (2014) 46 VR 308, 333–335 [103]–[112] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
By contrast, the applicant will serve his sentence, with other young inmates, in a Youth Justice Centre. Such an institution is, by its nature, also punitive, but its focus is on the development and rehabilitation of its detainees. Specifically, s 478(c) of the Children, Youth and Families Act 2005 provides for the establishment of youth justice centres ‘for the care and welfare of persons’ who are ordered to be detained under the Sentencing Act 1991 or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Likewise, section 482(2)(a) of the Children, Youth and Families Act 2005 provides that persons, who are detained in such a centre, ‘are entitled to have their developmental needs catered for’.[22]
[22]See Minister for Families and Children v Certain Children (by their litigation guardian Sister Marie Brigid Arthur) (2016) 51 VR 597, 614–15 [66]–[73] (Warren CJ, Maxwell P, Weinberg JA); Misokka v The Queen (Victorian Court of Appeal, Unreported, 9 November 1995) BC9502589 at 6–8 (Callaway JA), 10 (Vincent AJA) .
In addition, by the terms of the sentence imposed on him, Elmore-Jeffries is required to serve at least 21 months in prison, before he becomes eligible for release on parole. By contrast, pursuant to s 458(1) of the Children Youth and Families Act, the applicant has been, and remains, eligible for immediate release on parole.
In Gosland & McDonald v The Queen,[23] the two appellants had pleaded guilty to a number of offences committed in the course of an affray at a railway station. Gosland was sentenced to 6 years and 1 month’s imprisonment, with a non-parole period of 4 years. McDonald was sentenced to 2 years and 4 weeks’ detention in a Youth Justice Centre. One of the grounds of appeal, relied on by McDonald, was that the difference in the sentences imposed on him and the co-offender Gosland was manifestly inadequate and infringed the principle of parity. That ground was readily rejected by this Court. In their joint judgment, Nettle JA and Coghlan JA summarised the differences, between a sentence of imprisonment and an order that an offender be detained in a Youth Justice Centre, in the following terms:
… The relevant comparison is not as between the non-parole period set for Gosland and the length of the Youth Justice Centre Order made against McDonald but rather between the head sentence of six years’ imprisonment imposed on Gosland and the head sentence of a two years and one month Youth Justice Centre Order made against McDonald. There is no minimum term under a Youth Justice Centre Order. All Youth Justice Centre inmates are immediately eligible for parole. A Youth Justice Centre Order is also inherently less onerous sentence than a sentence imprisonment to be served in an adult prison and it reflects the premium which the judge placed on rehabilitation.[24]
[23][2013] VSCA 269.
[24]Ibid [30].
The question, then, is whether the various factors, that are relied on as differentiating the applicant from Elmore-Jeffries, were such that the sentence imposed on the applicant offends the principle of parity, notwithstanding the qualitative difference in the sentences imposed on the applicant and Elmore-Jeffries respectively. It is in that context that it is necessary to consider the factors upon which the applicant relies in order to differentiate his circumstances from those of Elmore-Jeffries.
In that connection, particular emphasis was placed by counsel for the applicant on Elmore-Jeffries’ criminal record, in contrast to which the applicant had no previous criminal conviction.
Clearly, the fact that Elmore-Jeffries had come before a court, previously, on a charge of recklessly causing injury, was a matter of important differentiation between the applicant and him. Of itself, it justified the imposition of a more severe sentence on Elmore-Jeffries than the sentence imposed on the applicant.
On the other hand, it is relevant to note that Elmore-Jeffries was not convicted for the previous offence, and he successfully completed the 12 month period in which the charge against him was adjourned, so that in December 2015 the Korumburra Children’s Court dismissed the charge. In those circumstances, while the fact that Elmore-Jeffries had come before the Court, and had been found guilty of the charge that was before the Court, was a relevant matter in determining his sentence, it was not of such moment as to compel the conclusion that, for the purpose of the principle of parity of sentencing, there was an insufficient difference between the sentence imposed on Elmore-Jeffries and the applicant. Rather, the qualitative difference in the nature of the sentences imposed on Elmore-Jeffries and the applicant more than adequately catered for the fact that, unlike Elmore-Jeffries, the applicant did not have any previous criminal history.
In that connection, it is, of course, relevant that the sentencing judge in the present case found that Elmore-Jeffries’ prospects of rehabilitation were only ‘fair’, so that he was an appropriate vehicle for the application of specific deterrence. By contrast, by inference, the judge did not consider that specific deterrence played any significant role in the determination of the sentence of the applicant, and his Honour accepted that the applicant was suitable for the imposition of a Youth Justice Centre order. Again, that difference, between the applicant and Elmore-Jeffries, was clearly relevant to the question of parity of sentence. However, it was adequately reflected in the acceptance by the judge that the applicant was suitable for a Youth Justice Order, and by the imposition of a sentence to be served by the applicant in a Youth Justice Centre rather than in a prison.
The applicant also relied on the fact that, at the time of sentencing, Elmore-Jeffries had been charged with, and intended to plead guilty to, assault arising out of the incident in which he had been involved in December 2017. That offence was not, of course, a prior offence or prior conviction for the purpose of his sentence in the present case. The judge correctly observed, in the course of argument, that Elmore-Jeffries was not to be punished additionally for his involvement in that offence, but that it was relevant to his Honour’s consideration of Elmore-Jeffries’ prospects of rehabilitation. It is evident that the judge did adequately take into account the fact that Elmore-Jeffries had been involved in, and faced a charge concerning, further offending involving violence. As discussed, the judge differentiated between the prospects of rehabilitation of Elmore-Jeffries on the one hand, and the prospects of rehabilitation of the applicant. That difference was adequately and appropriately reflected in the qualitative difference in the sentences imposed by the judge on Elmore-Jeffries and the applicant.
The other circumstances, relied on by the applicant, do not, on analysis, advance the submission made on his behalf in support of the proposed ground of appeal. In particular, the fact that the applicant was nineteen months younger than Elmore-Jeffries was of little relevance. At the age of 19 years, the applicant was responsible for his own actions. While, ordinarily, the youth of each offender is an important mitigating factor in the sentencing synthesis,[25] that consideration is accorded much less significance in cases for offending involving random violence, which are commonly prevalent among young offenders.[26]
[25]R v Mills [1998] 4 VR 235, 241–2 (Batt JA).
[26]DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA), 133 [25] (Winneke P).
Further, the fact that the applicant had the benefit of family support and a stable background, whereas Elmore-Jeffries lacked those advantages, did not advance the applicant’s contention as to parity.
Those factors were relevant to the applicant’s better prospects of rehabilitation, which, as we have noted, were reflected adequately in the different nature of the sentences imposed respectively on the applicant and Elmore-Jeffries.
On the other hand, the trauma, to which Elmore-Jeffries had been subjected during his childhood and early adolescence, and its effect on his ability to respond appropriately in a situation such as that which occurred on the night of the offending, were relevant mitigating factors in the assessment of his subjective culpability. In particular, Dr Glowinski, Mr Huson and Dr Kennedy each attributed Elmore-Jeffries’ problems with anger and violence, when affected by alcohol, to the traumatic circumstances of his childhood and his early adolescence. In that way, those factors were relevant to an assessment of the subjective moral culpability of Elmore-Jeffries for the offending, and as such constituted mitigating circumstances in his case.[27]
[27]Bugmy v The Queen (2013) 249 CLR 571, 592–3 [37], 594–5 [43]–[45].
In addition, whereas the applicant would have the benefit of family support during his term of detention in the Youth Justice Centre, the judge noted that Elmore-Jeffries would be ‘abandoned’ by his mother and step-father after he was sentenced.[28] In that additional respect, the sentence imposed on Elmore-Jeffries would be more onerous than that to be served by the applicant.
[28]Reasons [73].
Accordingly, the differences between the family backgrounds of the applicant and Elmore-Jeffries, are of limited consequence in assessing the issue that is raised by the proposed ground of appeal.
Taking into account the matters that we have discussed, we do not consider that it could be maintained that it was not open to the sentencing judge to differentiate between the sentences, imposed on the applicant and Elmore-Jeffries respectively, in the way in which his Honour did. The qualitative difference between the sentence of imprisonment imposed on Elmore-Jeffries, and the Youth Justice Centre order made in respect of the applicant, was more than adequate to account for the relevant differences in their personal circumstances, and the mitigating factors pertinent to each of them.
Accordingly, we are not persuaded that the sentence imposed on the applicant constituted a failure by the sentencing judge to comply with the principle of parity. On the contrary, the differences in the sentences imposed on Elmore-Jeffries and the applicant adequately and appropriately accounted for the differences in the factors that were relevant to the determination of the sentences to be imposed on each of them.
It follows that the application for leave to appeal is refused.
2
15
0